Labor and Employment Legal News Blog

Tag Archives: H-1B

Moments after President Obama announced that he would be expediting H-4 work authorizations last November, I received a call from a client inquiring about how to start the application process for his wife. I can understand their desire to jump on the opportunity. The green card acquisition process can drag on for years, testing the patience of many foreign nationals and frustrating their spouses who want to work, but who cannot by law. A dependent spouse’s inability to work can strain the couple’s economic viability and their marriage and prompt them to consider moving to another country.

The prospect of H-4 work authorization has lifted the hopes of many of those couples. The Department of Homeland Security (DHS) estimated that 179,600 spouses would apply for an Employment Authorization Document (EAD) in first year of availability with 55,000 requests each year afterward. In February DHS announced that they would begin considering applications for employment authorization for certain H-4 dependent spouses on May 26, 2015. Eligible individuals include H-4 dependent spouses of H-1B nonimmigrants who either:

Are the principal beneficiaries of an approved Form I-140 Immigrant Petition for Alien Worker; or

Were granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the U.S. beyond the six year limit on H-1B status.

However, on Thursday April 23, three employees from Southern California Edison sued the DHS to stop the work authorization provision, claiming that they had been displaced by H-1B workers and would face increasing competition if H-4 spouses were authorized to work. Save Jobs USA has also filed a preliminary injunction against the H-4 work authorization rule.

Given that the U.S. has not issued H-4 EADs before, we are in unchartered territory. It is hard to say how these cases and the H-4 EAD process will go. Rather than lose hope though, those interested in an H-4 EAD should be ready to file in case the May 26, 2015 date holds or for whenever DHS is able to accept applications.

Taking action to prepare to file will feel better than just waiting and will allow you to file as soon as the window for applications opens. Here’s what you will need to file an H-4 application for employment authorization:

Form I-765, plus filing fee of $380.

Two passport style photographs.

Proof of your marital relationship. If your marriage certificate is in a language other than English, you’ll need an English translation for it.

A valid passport.

A copy of your visa stamp. Make sure that you have a visa stamp and that you have a copy of it to submit with your application.

Your H-4 approval notice if you have one.

Evidence of your I-94 stamp. The I-94 stamp is the stamp you received in your passport on the day you entered the United States.

A copy of any prior EAD cards that you had. If you were a student and obtained an EAD card then, you’ll need to submit a copy of that card with your application.

Note: the above list is not meant to be an exhaustive list of documents to include nor is it meant as legal advice for any one specific individual.

Did you watch the President address the nation live last week? On November 20, 2014, President Obama announced a series of executive actions, including cracking down on illegal immigration at the border, prioritizing deportation of felons (details of which are still unclear), and requiring certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.

The initiatives include:

– Deferred Action for Parents (DAP). Parents of U.S. citizens and legal permanent residents (LPR’s of any age) who have been continuously present in the U.S. since January 1, 2010, who pass background checks and pay taxes are eligible for deferred action (temporary relief from removal for a specified period of time) for a three year period;

–Deferred Action for ChildhoodArrivals (DACA) to be revised to expand the group it encompasses to include young people who came to the U.S. before turning 16 years old, and have been present in the U.S. since January 1, 2010. It will also remove the 31 year old age cap, paving the way for about 270,000 more people to apply. The work authorization permit will also be increased from two to three years;

-Permit Employment Authorization for H-4 Visa Holders. Currently dependents of H-1B visa holders are not permitted to work. Regulations will be finalized in early 2015;

–Optional Practical Training. The length of time in OPT for Science, Technology, Engineering and Mathematics (“STEM”) graduates will be expanded, although no set time frame for this increase and associated regulations have been outlined;

–Pre-registration for Adjustment of Status. Individuals with an approved employment immigrant petition who are caught in the quota backlogs will be able to pre-register for adjustment of status to obtain the benefits of a pending adjustment. This change is expected to impact approximately 410,000 people;

-I-601A Waivers. Waivers will be expanded to include spouses and children of LPRs;

–Modernization and improvement of immigrant and nonimmigrant programs. Details on this are unclear;

-Enhancements to the Naturalization process; and

-U and T Visas. Three more types of offenses will be added to the list of offenses that can be certified by the Department of Labor.

Preliminary estimates show that approximately 4.9 million individuals may be eligible for the initiatives announced by the President, although there is no way of knowing how many individuals will apply. USCIS won’t begin accepting applications until approximately May 2015, and the new protections could be reversed by a new President. The bottom line is that the only certain provisions will have an immediate impact early next year, such as the DAP and DACA changes. Other proposed changes should be considered more along the lines of “Coming Attractions,” because they require regulations to be implemented. Limited details were offered during the President’s address to the nation, and in his subsequent Memoranda of November 21st. Since the President’s briefing included business employment immigration reform, there is a reasonable expectation for improvements outside of the undocumented community as well.

The U.S. Citizenship and Immigration Services (USCIS) proposes to establish a mandatory Internet-based electronic registration process for U.S. employers seeking to file H-1B petitions for alien workers subject to either the 65,000 or 20,000 annual caps.

This proposed regulation would alleviate significant administrative burdens on USCIS Service Centers, and eliminate the need for U.S. employers to prepare a complete H-1B petition without any certainty that an H-1B cap number will be allocated to the beneficiary named on the petition. For employers and beneficiaries who are not allocated a cap number, the cost savings will be significant since no petition will be required to be filed as under the current system. Only employers who are allocated a cap number will be required to subsequently submit an H-1B petition.

It is anticipated that this proposed regulation will be finalized and take effect in time for Fiscal Year 2012 (October 1, 2011 through September 30, 2012). Initially, the electronic registration process will only be applicable to the H-1B nonimmigrant classification. However, other nonimmigrant classifications will be added as needed.

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